The following is by Derrick Bell, from the treatise "Race, Racism and American Law."

The First Amendment and Racist Speech

While the First Amendment may be "the Constitution's most majestic guarantee," it is nonetheless a limited guarantee.[1] Defamation, obscenity, and speech which threaten the social order, bomb threats, incitements to riot, and "fighting words" - are all limited by law [2]. In the world of business, false advertisements, insider information, and suggestions that prices be fixed, are also off-limits. Yet hate speech-expressions which abuse, insult, or belittle a person because of his or her race, ethnicity, national origin, gender, religion, sexual orientation, or physical abilities-is still tolerated and even protected [3].

Debate over restrictions on racist speech has been triggered by renewed publicity surrounding hate-motivated slurs against members of target groups. [4] In one recent case, a black student at Emory University was hospitalized for "emotional traumatization" and rendered literally mute by a campaign of racist harassment.[5] Racial epithets were scrawled in her dormitory room, bleach poured onto her clothing, and death threats sent to her through the campus mail. When the student refused to be relocated, the university installed a motion detector and alarm system in her room and assigned police to patrol the hallway outside of her room.

This guarded exile, many would argue, is sadly but necessarily the only constitutionally acceptable remedy for those like the Emory student. They warn that suppressing racist speech leads us down a slippery slope towards totalitarianism, vesting in the government a censorship power over unpopular ideas which is inconsistent with the First Amendment and the most basic precepts of a democratic society. They point to the instrumental role that the First Amendment played in protecting the civil rights movement in its often angrily greeted advocacy for social change as proof of the necessity of an absolute free speech guarantee. Courts have almost unanimously accepted these arguments. [6]

In the face of a rising tide of racism on university campuses and as a result of demands by minority students, many schools have enacted free speech policies which limit students' rights to verbally harass blacks and members of other target groups.[7] The University of Michigan, for instance, adopted a Policy on Discrimination and Discriminatory Harassment of Students in the University Environment in response to a number of racist incidents. [8] The policy prohibited individuals from "stigmatizing or victimizing" individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran status.[9]

One student, whose name was withheld, successfully challenged the constitutionality of the regulation. [10] The student, enrolled in a graduate psychology program, apparently feared that "certain controversial theories positing biologically-based differences between sexes and races might be perceived as 'sexist' and 'racist' by some students" and might therefore be sanctionable.[11]

Writing that the dissemination of ideas, however offensive, may not be foreclosed to protect conventions of decency, the court held that the regulation was overbroad. The court refused to hold that hate speech could be punished under one of the many exceptions to free speech guarantees, as fighting words or libel, for instance. The court cited two instances which it believed illustrated the potential of the school's policy to reach protected speech. In the first case, a complaint was filed against a student on the grounds that he openly stated his belief that homosexuality was a disease. In another incident, a professor complained of a student's remarks that she did not treat minority students fairly. That such complaints were even entertained, the court concluded, showed that the policy could be used to preclude serious classroom discussion. The costs of hate speech, it was reasoned, are more than outweighed by the costs of using the law to prevent the discussion. [12]

What the Doe court forgot to weigh in the balance it struck was the equally valid, though most usually forgotten, right of blacks to equal protection of the law-a right which is sacrificed by oppressive hate speech. Racist speech, more than any other extremist speech, subjects its already-weakened victim to humiliation, isolation, and self-hate.[13]

As Professor Mari Matsuda writes:

[A]t some level, no matter how much both victims and well-meaning dominant group members resist it, racial inferiority is planted in our minds as an idea that may hold some truth. The idea is improbable and abhorrent, but it is there before us, because it is presented repeatedly. "Those people" are lazy, dirty, sexualized, money-grubbing, dishonest, inscrutable, we are told. We reject the idea, but the next time we sit next to one of "those people" the dirt message, the sex message, is triggered. We stifle it, we reject it as wrong, but it is there, interfering with our perception and interaction with the person next to us. For the victim, similarly, the angry rejection of the message of inferiority is coupled with absorption of the message .... [14]

Professor Patricia Williams describes racist expression as "a crime, an offense so deeply painful and assaultive as to constitute something I call 'spirit-murder.' Society is only beginning to recognize that racism is as devastating, as costly, and as psychically obliterating as robbery or assault; indeed they are often the same." [15] These acts of hierarchy and racial inferiority harm not only the immediate victims, but all blacks. They also injure all those who care for the victims and who are committed to the establishment of an equal, tolerant society.

The refusal to withdraw protection from racist speech stems from a failure to give weight to the claims of blacks, claims which may be fairly balanced against what has been held to be a nonabsolute free speech interest. It is a failure to recognize that oppressive speech is as much a badge of servitude as segregation or employment discrimination. It is, in short, a failure to consider "the victim's story." [16] It is no accident, as Professor Mari Matsuda writes that the law fails to provide redress for blacks victimized by hate speech. "The absence of law," she writes, "is itself another story with a message, perhaps unintended, about the relative value of different human lives." [17] Its message is not lost to those forced to suffer the effects of racist speech:

When hundreds of police officers are called out to protect racist marchers, when the courts refuse redress for racial insult, and when racist attacks are officially dismissed as pranks, the victim becomes a stateless person. Target-group members can either identify with a community that promotes racist speech, or they can admit that the community does not include them. [18]

An absolutist interpretation of the free speech guarantee is rooted, in part, in the idea that uncensored discourse is necessary to protect the open traffic of opinions essential to any reasoned and just democracy.[19] As Justice Holmes wrote:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.' [20]

It is only through the mutual toleration and comparison of diverse opinions, the theory goes that the truth will emerge.[21] Because our ideas of a just society are changing and emergent, it is impossible to say for certain that particular ideas are unacceptable. Ideas once rejected as immoral or blasphemous, including ideas underlying major advances in civil rights, eventually become the majority position. As it is impossible with certainty to distinguish good from bad ideas, the only choice is to protect all ideas.

It is also argued that confrontation with falsehood renews our commitment to our beliefs. When we censor speech, we "lose, what is almost as great a benefit [as truth], the clearer perception and livelier impression of truth produced by its collision with error."[22] Without exercise, truth atrophies into dogma. Even false speech is of value because it reveals the underlying current of dissatisfaction and dissent. It is preferable to have hate groups operating in public rather than in private:

where the unwanted weeds of frustration and revolt may grow more rapidly from inattention and where the falsehoods being propagated may less easily be exposed for their error. A policy of near complete openness to speech, in this sense, provides us with a social thermometer for registering the presence of disease within the body politic and the best opportunity of administering a speedy cure.[23]

Mill's advice resounds in the argument of civil libertarians who claim that it is tactically wise to permit hate speech since that speech galvanizes the opposition and sparks protest, which history often has proved to be the only effective vehicle of change. A focus on racist speech diverts attention from the real problem, which is the intolerant attitudes which underlie that speech; it deals only with the symptom, and not the disease itself.

If we are threatened or offended by certain ideas, we can employ less costly and more effective remedies than censorship. Justice Louis Brandeis's advice of over 50 years ago still proves true: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. "[24] Protest, debate, confrontation, and shunning are but a few of the sanctions which may be applied to deter racist speech. Attaching the stigma of social disapproval to the speaker who seeks to stigmatize others is as effective as any legal remedy, and is more empowering and poetically just than repression. [25]

The marketplace theory, however, rests upon a naive or convenient assumption that in our democratic society all speakers occupy a level playing field in which all speech is presumptively equal. It assumes that free speech exists and that segments of society are not systematically silenced even before the government enters the arena. Yet, like all social goods, speech is not equally and freely accessible to all. The battle which blacks have fought simply to have their voices heard makes this assumption untenable.

In addition, the regulation of racist speech is qualitatively different from other speech restrictions. Racism is not simply an unpopular view which requires special governmental solicitude-it is, sadly, the majority view [26]. Protection of racism and its expression in racial invectives has favored the powerful against the powerless. To provide redress for persons of color and other excluded groups is not to open the floodgates of censorship but to identify a specific group uniquely vulnerable to majoritarian oppression in need of government intervention simply to balance the scales.

The marketplace analogy also presumes that the discourse of all speech is in fact a dialogue. But racist invectives are one-sided; they neither invite nor permit response. How can the student who receives a card reading "the Ku Klux Klan is watching you" be expected to speak back? [27] Hate speech silences its victim and mars his or her response as presumptively unequal. Professor Charles Lawrence writes:

Assaultive racist speech functions as a preemptive strike. The invective is experienced as a blow, not as a proffered idea, and once the blow is struck, it is unlikely that a dialogue will follow. Racial insults are particularly undeserving of First Amendment protection because the perpetrator's intention is not to discover truth or initiate dialogue but to injure the victim. In most situations, members of minority groups realize that they are likely to lose if they respond to epithets by fighting and are forced to remain silent and submissive.[28]

Furthermore, the marketplace theory avoids the fundamental question of whether there is certain speech whose role in social decision-making is either detrimental or so marginal that it should never be countenanced. There are some ideas which simply are so repugnant to any concept of civilized society that they are not entitled to entry into the marketplace. To permit an idea to be advocated is to concede its legitimacy and to accept the possibility that it may become the governing system. There are some policies, though, whose implementation would be so unacceptable in a democratic society that their advocacy should not be permitted. [29] The Fourteenth Amendment reflects our choice not to permit absolute freedom at the expense of equality and equal personhood.

While a great many states have responded to the hate speech issue with hate crime laws prohibiting and punishing such speech, some commentators fear that the Court's confused decision in R.A.V. v. St. Paul sounded the death knell for hate-crime laws directly targeting speech and cast the constitutionality of all hate-crime laws into doubt. [30] The continued validity of penalty-enhancing laws in hate-crime cases was confirmed in 1993, the year after R.A. V., in Wisconsin v. Mitchell. [31] In Mitchell, the Court unanimously upheld the enhanced sentence for aggravated assault given to a young black man who, inflamed by the racism portrayed in the film Mississippi Burning, asked a friend if they were ready to "move on some white people" and, seeing the victim in the street, said "There goes a white boy: go get him." The Court said that the special harms posed by hate crimes-creating fear in the community-justified greater punishment. Speech, the Court held, is often evidence of motive, and factors such as motive can be taken into consideration in sentencing decisions. [32]

The Court sought to distinguish Mitchell from R.A. V. by noting that the St. Paul ordinance was aimed at speech, while the Wisconsin statute was aimed at pure conduct and would have no "chilling effect" on speech. Black people unable to decipher the Court's distinguishing complexities but well aware of racial history may wonder how the act of whites burning a cross in the yard of a black family newly arrived in a neighborhood is deemed protected speech, while a black person who attacks a white person is convicted of assault and has his sentence enhanced by a hate-crime statute. A part of the problem is that the law in general, and existing hate-crime statutes in particular, finds it difficult to target accurately the unique harm these actions cause to subordinated groups. Judith Butler addresses some of these problems. [33]

Butler points out that proponents of hate-speech regulation, including Mari Matsuda, Charles Lawrence, and Richard Delgado, liken hate speech to physical injury. In drawing the analogy, however,

they implicitly concede that an injury related to hate speech is distinct from a physical injury. That is to say, Matsuda, Lawrence, and Delgado never assert that hate speech is physical violence. Butler, therefore, theorizes on the nature of the injurious quality of hate speech. She contends that hate speech derives its violent efficacy by echoing "prior actions." Hate speech "accumulates the force of authority through the repetition of a prior and authoritative set of practices. It is not simply that the speech act takes place within a practice, but that the act is itself a ritualized practice. "[34]

In the case of cross-burning, for instance, the violent efficacy of the expressive gesture lies in the fact that it promises further acts of violence against the black family towards whom it is directed. The efficacy of a violent gesture, then, is not a function of the cross-burner's intent per se. (Butler, however, does not argue that the cross-burner should bear no responsibility for his speech-act.) Rather, the expressive act derives its efficacy from its genealogical relationship to a particularized set of historical practices. Given this understanding, trying to locate "final accountability" in a single person (or group of persons) is rather problematic. Hate-speech regulation, however, proposes doing exactly that. [35]

According to Butler, hate-speech regulation consolidates the subjective position of the articulator of the hateful utterance. Hate-speech regulation necessarily assumes that the injury inflicted by hate speech is complete; that is it assumes that the hateful speech can in no way be turned against its speaker. This, according to Butler, concedes an unjustified authority (power) to the person delivering the hate speech. In addition, it constructs the courts as neutral sites of adjudication. This is ironic because recirculating the hateful speech is a necessary component of adjudication. Hate-speech regulations empower the courts to participate in the furtherance of discussion as to what constitutes consequential speech-as if the courts' speech itself were not violently consequential. [36] The Supreme Court's decisions in R.A. V. and Mitchell v. Wisconsin reveal how shallow these notions of legal neutrality are.

Butler contends that Mari Matsuda, by advocating hate-speech regulation in the introduction to Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, argues that despite its racist formation, the law can be constructively used against hate speech. According to Butler, this notion, in effect, reinscribes the fantasy of law's neutrality or instrumentality. Butler takes issue with this privileging of judicial space (given its history) as the staging site for the antiracist struggle (or the ant-sexist struggle, in the case of pornography). [37] The very idea of legal redress, in Butler's view, stabilizes hate speech. She therefore advocates for critical, nonjudicial modes of intervention. Given that hate speech derives its violent efficacy from the promise of doing future harm, the speech's efficacy is contingent. Butler contends that, therefore, the speech can be made to "fail." The ostensibly hateful speech can be interdicted and redirected before the violence it promises can manifest. Indeed, a lot of antiracist/sexist/homophobic contemporary art seeks to do exactly that. Amy Adler explores the possible consequences for art if hate-speech regulations were enacted. [38]

She refers to critical race theorists like Delgado and Matsuda, who advocate against hate speech, as "left censors" who "fail to recognize that central to the contemporary activism emanating from their own communities are techniques that make leftist speech almost indistinguishable from the hate speech

and pornography it questions." [39] She fears that censorship will threaten ways in which artists and writers have used language to deconstruct harmful speech by working from "within the system that it criticizes, revealing internal contradictions by using the conceptual apparatus of the very thing it wishes to subvert. "[40]

Adler presents numerous examples of activist speech to show how "[h]ate speech, it seems, can play dual roles."[41] She describes how the gay movement has used the pink triangle as a symbol of empowerment, a symbol appropriated by the inverted pink triangle, which, like the yellow star for Jews, was used by the Nazis to mark homosexuals. She describes the artwork of Andres Serrano, a

black Hispanic artist who takes glorified photographs of Ku Klux Klan leaders, and the controversial appropriation of the word "nigger" by rap artists. She argues from these examples that subversion and reversal are the central mode of the outsider's discourse-a mode that would be lost if the speech codes desired by hate-speech activists were implemented. She accuses "left censors" of an inability to recognize the complexity of speech. Their theories of censorship do not recognize that "words and images are arbitrary and that the conditions of interpretation, themselves unpredictable, are all that gives words and images meaning." [42]

She problematizes the approach of theorists who recommend considering factors such as the intent of the speaker or the speech's impact on its victims to identify hate speech. The difference between subversive and oppressive speech, she contends, is often elusive. She concludes by supporting an approach that offers "full protection to activism," [43] rather than a code of regulation, warning leftists that they must make a choice and cannot have it both ways.